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Fernandez v. Horne

United States District Court, Ninth Circuit

October 30, 2013

Fernando Fernandez, Petitioner,
Thomas Horne, Defendant.


JACQUELINE M. RATEAU, Magistrate Judge.

Pending before the Court is Defendant Thomas Horne's Motion to Dismiss (Doc. 7) filed pursuant to Rules 12(b)(1) and 12(b)(6), Fed.R.Civ.P. Plaintiff Fernando Fernandez did not respond the motion. In accordance with the Rules of Practice of the United States District Court for the District of Arizona and 28 U.S.C. § 636(b)(1), this matter was referred to the Magistrate Judge for report and recommendation. As explained below, the Magistrate Judge recommends that the District Court, after an independent review of the record, grant the motion and dismiss this action with prejudice.


On December 22, 2010, the State of Arizona filed a Notice of Pending Forfeiture in Pima County Superior Court seeking the forfeiture of several separately identified items of personal property and sums of money, including $19, 040.00 listed as Item No. 12 and having been seized from Plaintiff Fernandez. Motion to Dismiss (hereinafter " Motion "), Ex. 1.[1] The Notice directed any person claiming a lawful interest in any of the seized property to file "a verified claim at the superior Court in Pima County satisfying the requirements of A.R.S. § 13-4311(E) and (F) within thirty (30) days after service of this Notice." Id., p. 2. The Notice also directed any claimant to mail copies of their claim to the Tucson Police Department and to Assistant Attorney General Albert B. Lassen, who was representing the State. Id. The Notice then provided the requirements for a claim as provide in A.R.S. § 13-4311(E) and (F), and informed any potential claimant that untimely claims would not be considered and no extensions to the filing deadline would be granted. Id.

On February 1, 2011, Plaintiff Fernandez filed a Notice of Claim for the return of the $19, 040.00. On May 23, 2011, following two hearings and supplemental briefing, an Order Striking the Claim of Fernando Fernandez was entered based on the Superior Court's finding that the Notice of Claim was not timely filed as required by A.R.S. § 13-4311(D). Motion, Ex. 3 (Order) & Ex. 5, p. 2 (noting the two hearings and supplemental briefing).

On June 22, 2011, Fernandez filed a Notice of Appeal. Id., Ex. 4. By Memorandum Decision filed on May 16, 2012, the Arizona Court of Appeals affirmed the trial court's order striking Fernandez's claim, rejecting his arguments that the State had waived any objection to the timeliness of his claim and finding that the claim was untimely filed. Id., Ex. 5. The Court of Appeals denied Fernandez's Motion for Reconsideration and issued its Mandate on December 18, 2012.

Fernandez then filed this action on May 22, 2013. In the Complaint, he alleges that although the Notice of Pending Forfeiture listed the names and addresses of all interested parties, there was no indication in the Notice of Pending Forfeiture of the actual date on which it was sent. He also alleges that the contents of the Notice of Pending Forfeiture "were not the same as those contained in A.R.S. § 13-4311(D) and (E)." Complaint, pp. 1-2. He seeks the return of the $19, 040.00 reported seized plus an additional $5, 960.00 he contends was also removed at the time of the seizure. Complaint, p. 3.


A. Fernandez has consented to the granting of the Motion.

Under Local Rule - Civil 7.2, a party who fails to file a response to a motion may be deemed to have consented to the granting of the motion and the Court may dispose of the motion summarily. Here, Fernandez did not file the required opposition and the Court therefore recommends that the Motion be granted.

B. Fernandez has failed to establish subject matter jurisdiction.

Federal Rule of Civil Procedure 8(a)(1) requires "a short and plain statement of the grounds for the court's jurisdiction...." Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of an action "for lack of subject matter jurisdiction." The plaintiff bears the burden of establishing the propriety of the court's jurisdiction. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). A Rule 12(b)(1) motion will be granted if the complaint, when considered in its entirety, fails to allege on its face facts sufficient to establish subject matter jurisdiction. Thornhill Publishing Co. v. General Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).

The pleading must show "affirmatively and distinctly the existence of whatever is essential to federal jurisdiction, and if [it] does not do so, the court, on having the defect called to its attention or on discovering the same, must dismiss the case, unless the defect be corrected by amendment." Tosco Corp. v. Communities For A Better Env't, 236 F.3d 495, 499 (9th Cir. 2001). Since subject matter jurisdiction must be affirmatively alleged, courts will not infer allegations supporting federal jurisdiction. See Watson v. Chessman, 362 F.Supp.2d 1190, 1194 (S.D. Cal. 2005); see also Tosco Corp., 236 F.3d at 499.

Defendant Thomas Horne, Attorney General for the State of Arizona, contends that the case should be dismissed because the Complaint does not contain a jurisdictional allegation and because Horne, rather than the State of Arizona, is named as the defendant. While correct on these points, both errors are easily remedied and, as such, would support dismissal with leave to amend. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (dismissal of a complaint without leave to amend should be granted only where the jurisdictional defect cannot be cured by amendment). Thus, if the lack of jurisdictional allegations were the only shortcoming of the ...

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